Page 44 - MetalForming November 2009

Doug Ehlke, a national board- certified civil trial lawyer, has for more than 20 years represented metalforming companies in OSHA litigation and in labor- union elections. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and environ- mental and employment discrimination law.
Ehlke Law Offices
28840 11th Avenue South Federal Way, WA 98003-3705 Phone: 253/839-5555
Fax: 253/874-5475
E-mail: dehlke@ehlkelaw-
offices.com
On September 29, 2009, Washington State DOSH Division published an enforcement inspection guideline to instruct compliance officers how to document whether an employer meets the four elements of this OSHA-citation defense (work rules, training on those work rules, safety rule compliance self- monitoring procedure and effective enforcement discipline). Unfortunate- ly, the new DOSH directive exceeds the statute, the case law and all practicality. This appears to be an attempt to dis- courage the defense, originally written into the DOSH law due to pressure from roofing associations and employ- ers throughout the state. This pressure was due to the fact that DOSH contin- ually refused to allow the affirmative defense or to even investigate it.
Here are the questions in DOSH’s new enforcement checklist:
1) Does the employer have a written accident prevention program tailored to the business operations and hazards involved?
2) Does the written program describe the safety rules employees must follow to conduct work tasks?
3) Are there specific rules related to the hazard identified?
4) Does the employer follow and implement the policies and procedures contained within the written program?
5) Are employees aware of the writ- ten programs and familiar with the pol- icy requirements?
6) Are other written programs required (e.g., lead, respirator, LOTO, haz com, etc.) and does the employer have them?
7) Does the employer have written procedures for identifying and evaluat- ing hazards when new substances, processes, procedures or equipment are
introduced into the workplace?
8) Are there written provisions for
reporting and correcting hazards?
9) Are there procedures to identify, remove and replace defective equipment? 10) Have procedures been estab- lished for investigating safety-related
incidents or accidents?
11) Do the written procedures iden-
tify how the employer will verify employee compliance with the safety and health rules for the workplace?
12) Does the employer have proce- dures established and implemented to identify and evaluate workplace hazards?
13) Does implementation of the haz- ard analysis procedures result in a com- prehensive evaluation of the task involved and the necessary safety methods?
14) Has the employer conducted a hazard analysis of the work task involved? 15) Does the employer ensure that employees have the proper safety or health-related equipment and PPE nec- essary, prior to the work being performed? 16) Have employees received the training necessary to use the PPE and/or
related equipment?
17) Was the equipment or PPE pro-
vided in this case?
18) Does the employer have a reliable
system for communicating safety and health matters to staff in a form readily understandable by affected employees?
19) Does the employer have a method of communicating with non- English-speaking employees to ensure the communication is understood?
20) Has the employer designed and implemented a reliable training program to provide employees with specific instruction on the practices necessary to perform assigned duties in a safe manner?
21) Is the content of the training
42 METALFORMING / NOVEMBER/DECEMBER 2009
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YOU & THE LAW DOUGLAS B.M. EHLKE
Unpreventable Employee Misconduct Defense —A State OSHA Agency Seeks to Redefine It